Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 13, 2023
CASE NO(S).: OLT-22-002956 (Formerly PL200240)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellants: Bill and Frank Pearce
Subject: By-law No. 2020-069
Municipality: Township of Uxbridge
OLT Case No.: OLT-22-002956
Legacy Case No.: PL200240
OLT Lead Case No.: OLT-22-002956
Legacy Lead Case No.: PL200240
OLT Case Name: Pearce v. Uxbridge (Township)
PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Grainboys Holdings Inc.
Request for: Request for an Order Awarding Costs
Costs sought against: Bill Pearce
Heard: July 31, 2023 in writing
APPEARANCES:
Parties Counsel/ Representative*
Grainboys Holdings Inc. David Germain and Katyrina Zielinski ("Moving Party" /"Applicant")
Bill Pearce and Frank Pearce ("Respondents"/"Appellants") Bill Pearce* representing himself and Frank Pearce
DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is a motion for costs by the Applicant ("Grainboys") against the Appellants (the "Pearce Brothers"), arising out of this Member's Decision dated March 7, 2023, (Pearce v. Uxbridge (Township), 2023 CanLII 19221 (ON LT)) which dismissed the Pearce Brothers' appeal (the "Decision").
2The Pearce Brothers appealed the Township's passing of By-law No. 2020-069 ("ZBA"), which is a site-specific amendment to the Township's comprehensive zoning by-law to expressly facilitate development of Grainboys' proposed milling, seed-cleaning, and flour/grain blending operation with associated storage at 3469 York-Durham Line. Grainboys' property is situated within an agricultural zone and adjacent to the Pearce Brothers' recreational property which includes a residential dwelling. In accordance with the subject ZBA, Grainboys' facility is proposed to be built 683 metres ("m") (2,240 feet ("ft")) from the Pearce Brothers' property line, and 793 m (2,600 ft) from their residential dwelling located thereon.
3The Pearce Brothers' appeal was principally premised on legal arguments associated with jurisdiction of the Tribunal, plus submissions concerning the correct (as they saw it) interpretation/application of specific local and provincial policies. The Appellant, Bill Pearce (hereinafter, referred to as "Mr. Pearce"), was identified as a retired lawyer and he represented both himself and his brother, Frank, throughout the proceedings. While Mr. Pearce did not purport to attend the proceedings as counsel, the Tribunal found him to be knowledgeable about legal proceedings in general, including as it relates to the expectations and obligations of a party.
4As will be discussed in greater detail below, the Appellants tendered no evidence in support of their appeal at the merit hearing after they unexpectedly declined to call their only witness, a planning expert. The Pearce Brothers' case, therefore, rested solely on challenges to the other Parties' evidence through cross-examination and through their legal submissions.
5At the hearing, the Township made it clear that it supports Grainboys' development plan, as demonstrated through its supporting evidence and submissions, as well as through its concerted effort to amend its Official Plan (the "Township OP") through Official Plan Amendment No. 65 ("OPA 65"). OPA 65 provides site-specific policy objectives in support of the development. The Tribunal further found that, while the Regional Municipality of Durham (the "Region") did not participate in the proceedings, it also clearly supports the proposed development as demonstrated through its own particular effort to amend its Official Plan through Official Plan Amendment No. 185 ("ROPA 185"). ROPA 185 provides similar site-specific policy objectives in support of the proposed development.
6For the reasons that follow, the Tribunal awards costs against the Pearce Brothers fixed at the sum total of $12,500.00, to be paid to Grainboys.
grainboys' Costs claims
7Grainboys are seeking costs against the Pearce Brothers as follows:
in the amount of $220,888.74, representing their total costs associated with the subject appeal. Grainboys makes this claim on the premise that the Pearce Brothers commenced/maintained their appeal for an improper purpose (specifically, to compel payment of $400K); or,
in the alternative, in the amount of $38,560.51, representing Grainboys' costs thrown away as a result of the Pearce Brother's failure to provide adequate notice of their decisions to drop and/or to not pursue issues, and/or their failure to provide adequate notice of their decision to not call their only witness listed on their witness list. Grainboys' claim that these actions resulted in them incurring unnecessary costs associated with certain aspects of their hearing-preparation.
The Tribunal's Approach to Awards of Costs and the Legal Framework
8The Tribunal's approach to assessing and awarding costs and the legal framework that governs such decisions is thoroughly and succinctly set out by the esteemed former Tribunal Vice-Chair David L. Lanthier in Abbotts v. Blue Mountains (Town), 2023 CanLII 56712 (ON LT)("Abbotts") at para. 31-35 (OLT-22-002269 issued on June 20, 2023):
31The Tribunal is granted the discretionary power to fix and award costs under its home statute, the Ontario Land Tribunal Act, ("OLT Act") and the Statutory Power and Procedures Act ("SPPA").
32Section 17.1(2), of the SPPA provides that an award of costs may only be made where the conduct or course of conduct of a party has been "unreasonable, frivolous or vexatious or a party has acted in bad faith" and s. 17.1(4)(b) obligates the Tribunal to identify the circumstances in which costs may be ordered. Section 20 of the OLT Act provides that the Tribunal may fix costs of and incidental to any proceeding in accordance with the Rules.
33Rule 23.9 is the Rule that identifies the circumstances where cost awards may be made, mirrors the wording of the SPPA, and provides guidance as to the circumstances in which the Tribunal may consider an award of costs in a proceeding.
34The Tribunal must be satisfied that the party against whom costs are sought has demonstrated conduct or a course of conduct that has been: (a) unreasonable; (b) frivolous; (c) vexatious; or (d) in bad faith. The Rule provides nine extending, non-limited, examples of clearly unreasonable, frivolous, vexatious or bad faith conduct and provides pointedly that the Tribunal is not bound to order costs even when the identified examples occur because the Tribunal will consider the seriousness of the misconduct.
35This Panel Member has before set out a condensed summary of some of the Tribunal's guiding considerations and principles that have developed over time within its jurisprudence relevant to a Motion for Costs. They include the following:
The case cited by the Residents Group, of Kimvar Enterprises Inc., Re, 2009 Carswell 666, ("Kimvar") referenced in the Appellant's submissions is often cited to distinguish the Tribunal's approach to costs from that of the Courts. Costs do not "follow the cause" and are not presumptively payable by an unsuccessful party to a "winner". An award of costs by the Tribunal is not routine, is not made lightly, and instead may be considered exceptional. The successful party should accordingly have no expectation that he, she, or it will recover costs of the proceeding.
Awards of costs may only be considered where there has been misconduct rising to the high threshold established in Rule 23.9. In the event of a finding of such conduct, the award of costs is not assured and remains discretionary. The final wording of Rule 23.9 makes clear that the seriousness of the misconduct will be considered.
Despite the exceptional nature of a costs award, the approach of the Tribunal nevertheless recognizes that parties must also be held accountable for their conduct if it is clearly unreasonable, frivolous, vexatious or in bad faith that it is deserving of an order compensating a party impacted by such conduct. There is no total immunity from cost claims.
Something which is unreasonable is irrational, not in accordance with good sense, or foolish, whether intentionally or unintentionally.
Frivolous conduct is conduct characterized as conduct demonstrating a lack of seriousness, and unacceptable conduct that is characterized as intentionally "silly" or "foolish".
An objective "reasonable person" test is applied leading to a conclusion that the totality of the party's conduct was not "right" or not "fair", such that the party should be obligated to compensate the requesting party for that kind of conduct.
In applying an objective test of a reasonable person, the seriousness of the misconduct, and its impact upon the ability of the Tribunal to ensure a fair and efficient hearing, or its impact upon other parties such as the party requesting the costs, is to be considered.
The approach of the Tribunal is to ensure that litigants are not dissuaded from exercising their right of appeal for fear of costs and historically has demonstrated a sensitivity to the right of appellants to bring matters before this Tribunal.
The Tribunal's recognition of its public interest mandate in the consideration of costs was explained with clarity in the Kimvar decision. Vice-Chair Seaborn indicated that the public interest impact of a costs award, the "chilling effect" an award of costs may have and its deterrence of public participation in planning processes, is a relevant factor to consider and made reference to the message that the former Board and this Tribunal has "consistently communicated with respect to costs". This statement in paragraph 40 of the Kimvar decision bears repeating:
Awards of costs are rare and costs are not intended to be used as indemnification to a successful party. The Board has made cost awards in cases where the dispute is between commercial entities and in limited circumstances, between government and business. These awards are unusual, far from routine, each turn on their specific facts. The Board…..takes a cautious approach to cost awards against citizens and strives to accommodate public participation in land use planning decisions. In fact, in the very limited number of cases where awards of costs have been made against citizens, amounts have always been nominal. This is entirely consistent with how the Board has typically proceeded: costs cannot be used as a threat to deter public participation; and costs will only be awarded (whether the parties are commercial entities, ratepayers or
citizens) where the conduct complained of is so improper that it cannot be ignored.
- If the Tribunal is to exercise its discretion, costs are rarely recoverable on a substantial indemnity or full indemnity basis. For the Tribunal to consider such an elevated scale of costs, the conduct of the paying party must be found to be conduct characterised as truly egregious, reprehensible, outrageous or scandalous and beyond the type of misconduct identified in Rule 23.9.
Grainboys' Claims for Costs
Full / Substantial Indemnity Costs for Maintaining the Appeal for an Improper Purpose
9Grainboys submits that it is entitled to all of its costs (a.k.a. on a full / substantial indemnity basis) because they allege that the Pearce Brothers maintained their appeal for an improper purpose. More specifically, Grainboys allege that the Pearce Brothers effectively attempted to coerce them to pay a lump sum payment in the amount of $400K in exchange for dropping their appeal.
10Factually, the Tribunal finds that there is no dispute that the Pearce Brothers responded to Grainboys' early efforts to discuss settlement with a proposal that included a payment of $400K. This proposal was sent via email, a copy of which was provided to the Tribunal as part of Grainboys' motion record.
11The Pearce Brothers respond to these claims by Grainboys by stating that their appeal was both commenced and maintained throughout in good faith, and the proposed payment of $400K was intended to reflect the expected injury to the value of their recreational property, and to otherwise compensate them for the diminution to their personal enjoyment of their property from anticipated noise from Grainboys' planned facility.
12Upon review of the evidence and submissions of the Parties, the Tribunal accepts the Pearce Brothers' submissions insofar as the request for $400K was akin to seeking compensation for anticipated losses (whether anticipated losses were reasonable or not). The Tribunal does not find it to be, as suggested by Grainboys, a seemingly arbitrary amount demanded in an effort to extort money in exchange for dropping their case. The Tribunal finds that, while the proposal for a large payment of money may not constitute good faith efforts in terms of settlement negotiations, the Tribunal does not find that it necessarily rises to a level of bad faith in relation to the Pearce Brothers' conduct in pursuit of their appeal. For example, the Tribunal does not find evidence that the appeal was brought or maintained as part of a concerted effort to obtain funds.
13Absent of finding an improper purpose on behalf of the Pearce Brothers, the Tribunal finds no grounds to award full / substantial indemnity costs of the appeal to Grainboys. As recognized in Abbotts, costs do not follow the cause in Tribunal matters, and the Tribunal otherwise finds no grounds to order the exceedingly rare award of full / substantial indemnity costs.
Specified Partial Costs for Unreasonable Conduct
14Grainboys identified three specific actions taken (or not taken) by the Pearce Brothers, which they submit rises to a degree of misconduct to justify an award of costs:
The Pearce Brothers raised the air quality issue but then abandoned it approximately two weeks before the hearing after Grainboys incurred the costs and efforts to retain an air quality expert and prepare his evidence;
The Pearce Brothers raised the noise issue and then refused to remove it from the Issues List, despite making no meaningful effort to pursue it or otherwise challenge Grainboys' position on the issue; and,
The Pearce Brothers declined to call their one and only witness, a land use planner, without providing any notice, causing Grainboys to unnecessarily incur costs associated with preparing for cross-examination and otherwise respond to the anticipated evidence of the witness.
This action was also in breach of paragraph 19 of the Procedural Order:
A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.
15Grainboys submits that their costs associated with the issue of air quality amounts to $11,300.00 and argued that the late abandonment of this issue led to Grainboys incurring costs that were ultimately thrown away and would not have been incurred if the Appellants had advised of their intent to abandon this issue in a timely manner. The Tribunal has reviewed the evidence in support of the quantum claimed, and finds that it reasonably represents these costs.
16Similarly, Grainboys submits that their costs associated with the issue of noise amounts to $6,893.00. Grainboys argued that the Pearce Brothers raised this issue and then later refused to remove it from the Issues List, notwithstanding the fact that they had no intentions to meaningfully pursue it. The Tribunal notes that Mr. Pearce did cross-examine Grainboys' noise expert, Andrew Dobson, but his questions were limited to exploring the cost of performing a post-construction noise-audit. Grainboys submits that, with their evidence being effectively unchallenged, the Pearce Brothers' conduct resulted in more costs being thrown away. The Tribunal has again reviewed the evidence in support of the quantum claimed and finds that it reasonably represents these costs.
17The Pearce Brothers responded to Grainboys complaints about their failings to timely drop their issues pertaining to air quality and noise, principally on two bases1. Firstly, they submit Grainboys was obliged to demonstrate that their proposed operations would not impact area land uses, so the costs associated with air quality and noise concerns would have been incurred regardless of the Pearce Brother's positions. Secondly, the Pearce Brothers contend that they were not in a position to determine whether or not they would meaningfully pursue these issues until after receipt of Grainboys' respective witnesses' statements. As a result, they submitted, Grainboys related costs were inevitable in any event.
18On the first point, the Tribunal accepts that Grainboys is obliged to address either or both of the air quality and noise issues; but only as long as the issues remain on the Issues List. The Tribunal further finds that these items were only included on the Issues List at the behest of the Pearce Brothers. When the Pearce Brothers eventually agreed to drop the air quality issue, albeit late, the Tribunal finds that Grainboys was relieved of their obligation to address that issue through their witness. However, as complained by Grainboys, the Tribunal finds that this occurred too late to avoid wasted time and costs.
19Regarding the noise issue, the Tribunal finds that the consequences of the Pearce Brother's lack of pursuit of the issue was effectively the same as the Pearce Brothers' belated abandonment of the air quality issue. The Tribunal finds that the poor timing of dropping the air quality issue, and failure altogether to drop the noise issue, caused Grainboys similar avoidable costs related to both issues. Upon the above findings, the Tribunal rejects the submissions of the Pearce Brothers, and finds that Grainboys' costs associated with addressing air quality and noise concerns would not have been incurred but for the Pearce Brother's initial positions on these issues and eventual failure to drop the issues in a timely manner.
20Turning to the second basis submitted by the Pearce Brothers, the Tribunal finds that the Pearce Brothers incorrectly assumed that a mere apprehension of a concern constitutes a valid issue that they are entitled to pursue. Similarly, the Tribunal finds that the Pearce Brothers also incorrectly assumed that they are justified in burdening Grainboys with having to address each and every issue raised by them, regardless of merit, to a degree which satisfies them before they are expected to drop it.
21In a general sense, the Tribunal finds that all Parties, including self-represented Parties, are expected to act reasonably insofar as they must conduct at least some basic due diligence to assess the merits of their concerns, and such responsibilities are ongoing as new information arises throughout the proceedings. The Tribunal finds that, while the Pearce Brothers may have genuinely worried about the impacts of Grainboys' proposed development on their property, a mere apprehension of a concern is not enough for them to reasonably burden Grainboys with the time and costs necessary to answer the issue. This is particularly true in the present case, with the evidence showing that the Pearce Brothers had at least some information disputing their concerns prior to filing their appeal.
22In the present case, the Pearce Brothers have acknowledged that they were aware of information regarding air quality and noise concerns at the municipal application stage of this matter, and they knew that such information did not support their concerns. This information, referenced in a municipal planning report, was clearly enough to satisfy the Township that Grainboys' proposal would not result in unacceptable negative impacts on surrounding land uses in the area. However, the Pearce Brothers nevertheless pressed these issues despite having no contrary information to substantiate their concerns.
23Given the above and noting that Grainboys' planned facilities are proposed to be built a fair distance away from the Pearce Brothers' property line, and further still from their residential dwelling, the Tribunal finds that the Pearce Brothers knew or ought to have known early on in the proceedings (probably before they filed their appeal and certainly before Grainboys were forced to retain the aforementioned experts) that the evidence would inevitably show that there is no merit to their concerns respecting air quality or noise. The Tribunal finds that such conduct, being a patent disregard of obvious facts and a general lack of concern for the inevitable consequences and prejudice caused to Grainboys, constitutes unacceptable conduct on behalf of the Pearce Brothers. The Tribunal is therefore satisfied that the Pearce Brothers acted unreasonably and/or frivolously insofar as they failed to drop their air quality issue in a timely manner and altogether refused to drop their issue respecting noise despite having no plans to present a meaningfully opposing case.
24Having found conduct which gives rise to a potential costs award, the Tribunal must next consider whether the seriousness of the conduct rises to a degree whereby the Tribunal elects to practice its discretion to award costs. In so doing, the Tribunal shall consider the impact of the Pearce Brothers' conduct on Grainboys.
25Through its submissions, Grainboys referenced Norwich(Township) Zoning By-law 7-97, Re, 1998 CarswellOnt 5785, 38 O.M.B.R. 65 ("Norwich") at para. 36, which states:
The Board [as the Tribunal was then], in an effort to seek guidance in this matter, reviewed the decision in Westfield Place Inc. Erhard Mueller, Royal Game Birds Ltd. (Unreported, 1996, Files M940113 and R950012) wherein it states (page 36) that the Board has been consistent in cautioning appellants that the "right" to bring matters before it is not given without obligation. In the Westfield case, further guidance on the issue of costs was drawn from the quotation in Durham (Municipality) Official Plan Amendment 147, Re (1987), 20 O.M.B.R. 493 (O.M.B.) at pages 36-37:
When an informed citizen begins the appeal process the Board is entitled to conclude that the appellant has considered the following matters, namely:
the merit of the appeal
the evidence to be called
the chance of success
the expense that will have to be carried by both sides in terms of time and money
the risk of costs.
26Grainboys further drew the Tribunal's attention to paras. 139-140 of Campione v. Vaughan (City), 2016 CarswellOnt 19377, [20160 O.M.B.D. No. 408 (issued June 3, 2026)("Campione"), which built on Norwich as follows:
While expressed in terms of the filing of an appeal, the points [in Norwich] are fully applicable to decisions by an appellant to maintain and continue an appeal, particularly a broad appeal, rather than narrowing or withdrawing all or part of the appeal.
27Referencing the above, Grainboys emphasize that when an appellant commences an appeal, he or she must be aware of the expenses that will be borne by both sides in terms of both time and money, and the Pearce Brothers knew or ought to have known that commencing and maintaining their appeal would have a significant negative impact on Grainboys' business. More than that, Grainboys submitted, the Pearce Brothers acted strategically to cause delay to Grainboys development plans.
28Apart from time and professional fees expended on preparation for and attendance at the hearing, Grainboys submitted (through evidence) that the impacts on its business included:
Delay;
Carrying costs of the Subject Lands;
Inflation of construction costs;
Lost opportunities for growth; and,
Stress on the company's principals.
29While Grainboys acknowledge that these impacts are not compensable directly by means of a costs award per se, they submitted that these are very real impacts that Grainboys and its principals have suffered and it speaks to the seriousness of the Pearce Brothers' misconduct. Furthermore, Grainboys pointed out that the Pearce Brothers admitted at the hearing that, even if their arguments regarding the applicability of OPA 65 and ROPA 185 were accepted (which they were not), it would serve only to force the Grainboys to re-submit its application (see March 7, 2023 decision at para. 34, Pearce v. Uxbridge (Township), 2023 CanLII 19221 (ON LT)). In other words, Grainboys submits, the Pearce Brothers clearly sought some satisfaction through causing delay.
30The Tribunal accepts the reasoning found in Norwich and Campione, cited above, and will apply it to the present matter. The Tribunal further accepts the above submissions of Grainboys, finding that, while the impact of the Pearce Brothers' conduct on Grainboys business is not compensatory beyond the costs being claimed, the broader impacts upon Grainboys business interests are nevertheless relevant when considering and assessing the seriousness of the Pearce Brothers' conduct (which is naturally informed by the impact on Grainboys). Such considerations also form part of the objective "reasonable person" test set out in Abbotts. The Tribunal finds that the Pearce Brothers' conduct was neither "right" nor "fair", to a degree that the Pearce Brothers should be obligated to compensate Grainboys for their misconduct.
31As it relates to the above, the Tribunal finds that the unreasonable and/or frivolous conduct exhibited by the Pearce Brothers falls within the examples provided in Rule 23.9 of the Tribunal's Rules of Practice and Procedure, specifically 23.9 (b) and/or (c), insofar as the Pearce Brothers failed to provide adequate and/or any notice, failed to act in a timely manner, and generally lacked cooperation with the other Parties to narrow the issues to only those that remained contentious and/or would be meaningfully challenged. The Tribunal acknowledges that this finding does not automatically result in costs being awarded. However, having found the impugned conduct (failure to drop issues in a timely manner) is sufficiently serious (as informed by the impact on Grainboys), the Tribunal elects to practice its discretion and award costs to Grainboys fixed at $5,000.00.
32Grainboys further submits that they unnecessarily incurred costs in the amount of $7,588.00 associated with preparing for the Pearce Brothers' anticipated planning evidence, which was unexpectedly withdrawn without notice. Both Grainboys and the Tribunal were informed only at the time when Mr. Pearce was supposed to commence his case. This action was also specifically in contravention of paragraph 19 of the Parties' Procedural Order, which expressly required all witnesses who had provided a witness statement to attend unless seven days notice of their non-attendance is provided. Grainboys argues that, once again, the Pearce Brothers' conduct of failing to provide timely notice resulted in costs being unnecessarily thrown away.
33In response, the Pearce Brothers "acknowledge that [their] decision to not call [their] planner likely gave rise to unnecessary [c]osts associated with [Grainboys'] preparation of cross [examination]". However, the Pearce Brothers question the quantum of costs being claimed, and submit that their decision to not call their witness ultimately shortened the hearing, which should have saved at least some costs.
34The Tribunal finds that the Pearce Brothers' decision to not call their witness resulted in unnecessary costs being incurred by Grainboys. The Tribunal also accepts the quantum of costs being claimed by Grainboys as reasonably representing the wasted/thrown away time/costs associated with unnecessarily preparing for the Pearce Brothers' witness.
35Furthermore, the Tribunal rejects the Pearce Brothers' assertion that their decision to not call their witness resulted in off-setting cost-savings as a result of shortening the hearing. The reason that the Tribunal rejects this submission is because the Tribunal is not convinced that Grainboys necessarily enjoyed any off-setting cost-savings by having the Pearce Brothers decline to call their witness.
36The Tribunal finds that the collective decisions by the Pearce Brothers', insofar as they failed to pursue certain identified issues and suddenly declined to call their one and only witness, ultimately resulted in an extremely thin case presented by the Appellants. The Tribunal further finds that, had the Pearce Brothers made it clear from the beginning that they would not vigorously pursue their appeal (i.e. not meaningfully challenge various issues and not call any evidence to support their positions), these proceedings may have gone in a much different direction. For example, if it was known from the start that they would not be calling any evidence, Grainboys may have seriously considered bringing a motion to dismiss. At the very least, the Tribunal finds, if it was clear from the start that the Pearce Brothers' case would be focussed primarily on legal arguments, the time set aside for the hearing could have been cut in half or more.
37Additionally, the Tribunal finds that the conduct related to failing to provide notice respecting the attendance of their witness marks a continued pattern of unreasonable and/or frivolous behaviour, which should neither be tolerated nor encouraged by the Tribunal. The Tribunal furthermore finds that the Pearce Brothers' conduct breached the direction provided in the Procedural Order, thereby interfering with the Tribunal's ability to conduct a fair, just and efficient hearing.
38For the above reasons, the Tribunal finds that the Pearce Brothers' last-minute decision to not call any witnesses constitutes unreasonable and/or frivolous conduct. The Tribunal further finds that such conduct falls within the examples provided in Rule 23.9, specifically 23.9 (b), (c), and/or (e) insofar as the Pearce Brothers failed to provide adequate notice, generally lacked cooperation with the other Parties, failed to act in a timely manner, failed to comply with the Procedural Order, and ultimately, failed to present evidence. Similar to the Tribunal's findings above respecting the lack of pursuit of various issues, the Tribunal finds that the seriousness of the Pearce Brothers' conduct warrants the discretion of the Tribunal to award costs, being fixed at an additional $5,000.00.
39In addition to the above costs being claimed by Grainboys, Grainboys are also seeking costs associated with bringing the present motion in the amount of $12,779.51.
40In response to this particular costs claim, the Pearce Brothers submit that Grainboys are not entitled to seek such costs because, technically, they did not specifically list such costs as part of their initial costs claim. The Tribunal rejects this argument, accepting that it is inferred that a moving party may seek their costs of this type of motion.
41In the present case, however, the Tribunal finds that Grainboys is only entitled to a modest portion of its costs associated with preparing this motion because Grainboys was only modestly successful and it should have known or ought to have known that its claims for full /substantial indemnity costs would not be successful. Consequently, the Tribunal fixes Grainboys' costs of this motion payable by the Pearce Brothers at $2,500.00.
42In summary, the Tribunal awards Grainboys $10,000.00 on account of the Pearce Brother's conduct at the hearing (failure to drop issues in a timely manner + failure to call anticipated evidence), plus additional costs of this motion in the amount of $2,500.00, for a total of $12,500.00.
ORDER
43THE TRIBUNAL ORDERS that the application for costs is granted and directs Bill Pearce and Frank Pearce, jointly and severally, to pay Grainboys Holdings Inc. a costs award in the amount of $12,500.00 total, inclusive of any interest or HST. The costs award is to be paid within two (2) months of this Order and subject to interest calculated in accordance with section 129 of the Courts of Justice Act.
"K.R. Andrews"
K.R. ANDREWS
MEMBER
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal ("Tribunal"). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal